C3672/600, Transcript of Proceedings [2001] AIRCTrans 2138 (31 August 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N 8811
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C Nos 36276, 36277, 36278, 36279,
36280, 36281, 36282, 36283, 36284,
36285, 36286, 36287, 36289, 36290,
and 37288 of 2000

AUSTIN REPATRIATION MEDICAL
CENTRE and OTHERS

and

AUSTRALIAN NURSING FEDERATION
and ANOTHER

Applications under section 170MX of the Act
following termination of bargaining periods
re programming and directions

MELBOURNE

10.00 AM, THURSDAY, 9 AUGUST 2001

Continued from 2.8.01 before SDP Watson, SDP Lacy and Commissioner Blair

PN207

MR K. BELL: I seek leave to appear with MR V. GOSTENCNIK on behalf of the applicants being the VHIA on behalf of the institutions concerned and I also seek leave on behalf of the intervener that they be given leave to intervene and to represent them with Mr Gostencnik.

PN208

MR S. HOWELLS: I seek leave to appear on behalf of the Australian Nursing Federation and I appear with MR P. GARDNER and MR R. BURROWS.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes, very well, no objection to leave in any case. Leave is granted in all respects. Yes, Mr Howells.

PN210

MR HOWELLS: Your Honour, I have mentioned to my learned friend that we have some preliminary concerns about the matter and I really need to raise those now and I will attempt to do those as briefly as I can, but they impact upon jurisdiction and for that reason it is probably appropriate that we attempt to deal with them before the matter goes much further. Can I hand your Honour, do you have, Mr Senior Deputy President an outline of argument on the one - the application under?

PN211

THE SENIOR DEPUTY PRESIDENT: I do, yes.

PN212

MR HOWELLS: What we have done is to seek to record some of these concerns because the way in which the matter has become before you as we apprehend it, is such that the matter was referred - or matters were referred out of a bargaining process via section 170MX it would appear, and an application under 111(1)(t) has been made adjunctive to that and then somehow the question of 111(1)(t) application has made its way to you. We say - - -

PN213

THE SENIOR DEPUTY PRESIDENT: Well, that part of the matter is before the Full Bench was referred to .....

PN214

MR HOWELLS: Yes. Now first of all we say as you will see, your Honour, that the 111(1)(t) application is simply not competent. The paragraph doesn't confer power to make directions of the kind that is proposed there is no suggestion that the conduct prompting the application, that is what is alleged in the application by the health authorities, that is allegations that there is industrial action of a particular kind and that is prompting bed closures, even if that were established which we say it is not on their evidence, that conduct is not conduct which has or will render any decision that the Commission might make under 170MX irrelevant or have the effect of defeating the Commission's jurisdiction.

PN215

Now, the Commission will recall within Hoyts, and I think we have a copy of the extract if I could hand that to - you see what came to the Full Bench of course under MX was the question of the matters that had been the subject of bargaining and they included so it said for want of a better expression, ratios and workloads, and not in that order. Now in order to deal with that in an arbitral fashion under MX of course, the Commission has to simply look at the evidence that is available, look to see what the scope of the matters about workloads, ratios and other matters under the - within the bargaining period. And then determine what ought to be the arbitral outcome if any.

PN216

The fact that there may be alleged to be action being taken at workplaces we say can't render a decision that you make irrelevant, or have the affect of defeating your jurisdiction assuming that there is jurisdiction to deal with the matters unders MX. And in particular - and that is relevant because the purpose of 111(1)(t) of course is to enable proceedings to be conducted in an appropriate way and in an effective way. If one looks at 111(1)(t) and it is expressed to operate subject to this Act, it gives the Commission, in relation to an industrial dispute power generally to give all such directions and do all such things as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute.

PN217

Well, in of course - in Hoyts and that is the re MEAA ex parte the Hoyts Corporation [1993] HCA 40; (1993) 178 CLR 379 and in particular at 390, your Honour will be familiar no doubt with this passage, at 390 at about point 3 of the page:

PN218

The steps that may be taken and the orders that may be made in the course of arbitration are not necessarily co-extensive with what may be done by way of a final award. So much is expressly recognised by 111(1)(t) of the Act which, as has already been noted, confers the general power to give all such directions and do all such things as are necessary or expedient for the speedy and just hearing and determination of an industrial dispute. Although there might be questions as to the validity of the final award having effect of the kind that clause 31.1 has in relation to matters not dealt with in the interim award, an interim provision of that kind may well be necessary or expedient for the speedy and just hearing and determination of a dispute. Particularly if, as was suggested in this case there is a possibility that conditions will be altered so as to render the Commission's decision irrelevant or so as to defeat its jurisdiction, and that is so even if the provision operates in a wider area than that to be regulated by the final award, for it may be necessary or desirable to consider all aspects of existing employment practices and arrangements before determining the provision that should be made with respect to matters in dispute.

PN219

Germane to that consideration of 111(1)(t) is the notion that directions that you give under 111(1)(t) should be directed to ensuring that the Commission's hearing and determination of the matter and the decision that it may make arising from a matter will not be defeated - will not be rendered irrelevant or the jurisdiction defeated. Now in this case the relief that is sought is not directed to enabling whatever adjudication, whatever arbitration under 170MX is to be undertaken relevant or otherwise, that is not what it is directed to, it is directed to what is said to be a dispute going on in workplaces.

PN220

As we say in the outline the purpose and effect of the 170MX proceedings are unaffected by the conduct concerned, that is the conduct which is attacked and the Commission that ANF foreshadowed at the Full Bench mention of these proceedings, its reservations about 111(1)(t). In any event directions, and it is apparent from the terms of 111(1)(t), directions must be relevantly connected to the purpose of the provision and be necessary or expedient for the purpose of the hearing. We say that it is just not established that the directions that are sought have any relevant connection.

PN221

When one looks at the relief that is sought, it is directed entirely - those two paragraphs of the relief sought are directed entirely to whether or not on the assumption that there is some industrial action being organised, directing that it cease. Now that is not necessary or expedient for the purposes of having the 170MX arbitration undertaken. There is a - the next question over on page 2 of this outline, Mr Senior Deputy President, concerns the operation of 107(9). Now we say the Commission as presently constituted is not able to deal with the 111(1)(t) application.

PN222

It is respectfully submitted that the section 107(9) reference by the Full Bench is misconceived. 107(9) requires and is conditional upon a section 107 application having been granted under 107(2)(b). The Commission will be familiar with those provisions. 107(1), of course, refers to a reference in the section to part of an industrial dispute - includes a reference to an industrial dispute so far as it relates to a matter in dispute or a question arising in relation to an industrial dispute. 107(2) provides that, where a proceeding in relation to an industrial dispute or an alleged industrial dispute is before a member of the Commission, a party to the proceeding or the Minister may apply to the member.

PN223

And (a), in the case of a proceeding in relation to an alleged industrial dispute, to have the proceeding dealt with by a Full Bench because the subject matter of the proceeding is of such importance that in the public interest the proceeding should be dealt with by a Full Bench, or (b), in the case of a proceeding by way of conciliation or arbitration, to have the industrial dispute or part of the industrial dispute dealt with by a Full Bench because the industrial dispute or the part of the industrial dispute is of such importance that in the public interest it should be dealt with by a Full Bench.

PN224

Now, apparently, as you will see in the outline on our second page, your Honour, apparently no such application was ever made. Further, no such application was ever granted. An inspection of the documents kept by the Registrar relating to these proceedings discloses no decision by the President or acting President. We conducted that inspection by solicitors at 9.40 am on 8 August. Now, in circumstances where rule 17 of the Commission's rules provides that a copy of a decision of a President on an application under 107 must be kept by a Registrar with the documents relating to the proceedings, the absence of such a document justifies the submission.

PN225

And we presume, of course, regularity, on behalf of the Registrar. As we understand it - and we have filed an affidavit of Mr Gardner, I don't know whether the Commission has a copy of that.

PN226

THE SENIOR DEPUTY PRESIDENT: I have no idea whether I have a copy of that. That would be in your materials, would it?

PN227

MR HOWELLS: It was filed with the materials, I am instructed.

PN228

THE SENIOR DEPUTY PRESIDENT: Oh, yes, it is filed separately with the materials.

PN229

MR HOWELLS: It simply discloses that there isn't - - -

PN230

THE SENIOR DEPUTY PRESIDENT: Yes.

PN231

MR HOWELLS: - - - a reference on the bench or there is no indication of action consonant with the requirements of 107. The Commission - rather than being Commissioner, I think that should be Commission - could not have been said to have moved of his own motion under 33 to apply under section 107 given that 33 is expressed as being subject to the Act. And sub section 107(2) requires an application to be made by a party or the Minister. The Full Bench's decision in this matter of 6 August 2001 notes at para 5 that on 30 July 2001 the acting President constituted this Full Bench to conduct arbitration pursuant to section 170MX.

PN232

There is no reference to a section 107 application or reference in the decision and certainly not on the record so far disclosed either on the file or in transcript. The Full Bench's reference to the Commission as presently constituted is made at paragraph 21 of its decision of 6 August 2001 and at paragraph 21 the Full Bench has observed:

PN233

The 111(1)(t) orders sought by the parties and intervener represented by Mr Bell were opposed by the ANF, in part, on the basis that there was an inadequate evidentiary basis to support the orders. We agree that there was not sufficient evidence before us to support the orders, nonetheless, should the fact of industrial action be established, we see some point in the making of orders to prevent such action.

PN234

And we have taken that to be, obviously - or we have assumed that that wasn't intended to indicate a determination of the matter by the bench. It may have been a preliminary view in the absence of evidence:

PN235

We see some point in the making of orders to prevent such action in order to protect the purpose and effect of the 170MX proceedings.

PN236

Now, it is not obviously identified - this is for the purposes of point 1 that we make in the outline. It is not identified there how it is said that orders under 111(1)(t) would protect the purpose and effect of the 170MX proceeding.

PN237

And obviously that was not a matter that was canvassed in detail before the Full Bench as the mention and programming hearing. What we urge upon you, sir, is that you should not rush to a conclusion that there would be basis, or that there is a basis, for making the relief that it sought for the purpose of protecting the purpose and effect of the 170MX proceedings. And that is particularly so, Senior Deputy President, where you have got 127 - section 127 which provides, it would appear, for dealing with applications for relief about industrial action not contiguous to some other purpose.

PN238

THE SENIOR DEPUTY PRESIDENT: Yes, go on.

PN239

MR HOWELLS: Your Honour, you see that aspect of 111(1)(t) really marks it out as being separate from - it demonstrates the difference between 111(1)(t) and 127 orders. If - because 127 orders are available it highlights the fact that the making of orders under 111(1)(t) needs to have the relevant connection with making proceedings workable, preventing them from being rendered ineffective, preventing them from having the jurisdiction removed, as it were. And for that reason you would need to be very satisfied, your Honour, you would need to be very satisfied by an applicant under 111(1)(t) that there was this relevant connection with the proceedings.

PN240

And that has not been spelt out. It is not spelt out in the evidence that has been put forward. It is certainly not demonstrated from the application itself that there is some relevant connection between making - granting this relief and ensuring that the MX proceedings can be conducted in an appropriate and effective way. Going back to paragraph 21, it goes on:

PN241

A determination of the evidentiary issues in contention should be undertaken promptly in the circumstances pursuant to section 107(9) of the Act. We refer that part of the current proceedings constituted by the section 111(1)(t) applications to Senior Deputy President Watson to hear and determine.

PN242

Well, again, we say, there hasn't been any necessary action under 107 that would ground it and it doesn't - there doesn't appear to be a 107 basis. That hasn't been identified. If there had been, of course, there would be consequences of that. Now, we go on in the outline. Part VI of the Act has application to these proceedings by virtue of the operation of section 170MY. That section confers on the Commission the conciliation and arbitration powers it has under Part VI in section 170MX proceedings. However, even if section 107 can be described as a conciliation and arbitration power under Part VI, which we don't concede, there was no section 107 application in relation to the MX matters.

PN243

Now, a further reason why the Commission as presently constituted is not able to deal with the 110(1)(t) applications is that even if section 107(9) was activated the matter which would then be said to have been referred to the Commission as presently constituted by the Full Bench was not capable of being referred under 107(9). This is because the section 111(1)(t) application is not a part of the matters that were at issue during the bargaining period as required by 170MY when read in conjunction with 170MX(3)(a).

PN244

Can I take your Honour to those provisions. You will see that 170MY provides that the Commission has the conciliation and arbitration powers in relation to the matters mentioned in sub section 170MX(2) and (3) that it would have under Part VI in relation to the matters if that part applied to conciliation and arbitration in relation to the matters instead of in relation to industrial disputes. So there is a notion of the matters being a significant expression for the purposes of this part of the scheme. And the matters are matters which were at issue during the bargaining period.

PN245

If one goes to 170MX you will see that the scheme is such that 170MX(1) provides this section applies if a bargaining period is terminated on a ground set out in sub section 170MW(3) or (7). The Commission is well familiar with those provisions. As soon as practicable the Commission must begin to exercise the conciliation powers mentioned in 170MY to facilitate the making of an agreement, or otherwise, settle any matter or issue that could be covered by such an agreement. And that sub section applies even if the Commission has already attempted conciliation during the bargaining period.

PN246

Under sub (3), if after exercising conciliation powers as required by sub section (2) the Commission is satisfied that, (a), the negotiating parties have not settled the matters that were at issue during the bargaining period, whether or not by making an agreement. And, (b), it is not likely that further conciliation will result in the matters being settled within a reasonable time. The Commission must, if it considers it appropriate exercise, the arbitration powers mentioned in 170MY to make an award that deals with the matters.

PN247

The matters are the matters which were at issue during the bargaining period. They don't include, if the Commission pleases, an application under 111(1)(t).

[10.35am]

PN248

THE SENIOR DEPUTY PRESIDENT: So you say that neither the Full Bench or a member of it be able to arbitrate in respect to such orders.

PN249

MR HOWELLS: No, and precisely, sir, and precisely because of that reason and also the need for there to be contiguity between the use of 111(1)(t) and the effectiveness - - -

PN250

THE SENIOR DEPUTY PRESIDENT: Yes, I understood the other arguments.

PN251

MR HOWELLS: - - - and particularly so when one has got 127 there, particularly so, because it - and referral powers like the powers under 107 which would have an impact. It is submitted that one - this is point 3 on page 3:

PN252

It is submitted that the function of the Full Bench now established is identified clearly in 170MX(3) ...(reads)... are to be exercised by a Full Bench, not by a single member.

PN253

Now, further, we say, the Commission should not issue a direction in the circumstances because such a direction or order may be caught as a section 170MX order and direction and accordingly, subject to the constraints that are found in 170MZ. Now, when one looks at 170MZ, one sees that awards under 170MX must contain a nominal expiry date:

PN254

The award remains in operation at all times after it commences. The award has effects subject to any conditions that are specified in the award and before the award's nominal expiry date ...(reads)... the revocation would not be against the public interest.

PN255

Then there is provision for termination. There is a significant attenuation, Senior Deputy President, of the capacity to revoke and this sort of relief, the sort of relief that is being claimed is not appropriate to be contained in an order which might be then said to be the subject of 170MZ because it fetters the capacity of the Commission to turn around and say, well, look, gee, we have now seen some further evidence. This order that was sought was not appropriate, or we also see that there is a grave danger that the direction that is being given will operate, that is, the order that is sought will operate to prevent nurses, including senior nurses, from making a clinical decision to close a bed for good cause not related to any simple proposition about a ratio or otherwise, but a clinical decision based upon what is appropriate clinically and what is justifiable, what is acceptable, what does not impose an unreasonable work load, an excessive and unjust work load on nurses and what does not expose patients to undue risk or to inadequate or inappropriate standards of care.

PN256

Now, that is the trouble with having the sort of relief that is claimed made in an order which would be difficult to revoke or in respect of which revocation or variation by the Commission might be fettered in some way. Those sorts of orders, orders about industrial action, must be - if you are going to be make them, really have to be orders that you can mould and alter at short notice.

PN257

THE SENIOR DEPUTY PRESIDENT: The orders in the terms sought would not preclude clinical decisions as to bed closures. The orders are directed to industrial action in the formal bed closures.

PN258

MR HOWELLS: The trouble with that, your Honour, as you well know, when a direction is given about action of that kind there is going to be - we have not got yet to the form of the orders that are sought, but the form of the orders themselves pose considerable difficulty, but they are not expressed tightly and particularly in order number 6, it is a direction to any person to cease engaging in industrial action in the form of the failure or refusal to perform work the result of which is bed closures. Now, nice question about what would fall within that and what would not. Whether it is industrial action, of course, is going to be a matter for determination.

PN259

A nurse may say, gee, I am going to be very reluctant to do anything at all because I might be said to fall foul of these things. It is not as if there are available at each work place lawyers who can advise about precisely what action will fall within and what will not and when relief of this kind is sought it is extreme injunctive relief, whenever it is done, Mr Senior Deputy President, it is extreme injunctive relief. It is against individuals who are not here present, who will not be heard as individuals and the old equity principles, as the Commission is well aware, always require that if you make injunctive - if the Court is to grant injunctive relief against individuals they have a right to understand as individuals, each and every one of them, precisely what it is that is being levied against them and what the consequences of it are.

PN260

Now, okay, in the industrial context we have a specialist tribunal and we have representative bodies and that is part of the reason why orders of this kind that would otherwise at common law be seen as extreme injunctive relief, that is why it is permitted in certain circumstances. But we would urge you, sir, to be very cautious of coming to a conclusion, particularly where 170MZ fetters, has the potential to fetter your capacity to either revoke or vary that relief, to be very cautious about proceeding to relief as extreme as that sought in 5 and particularly 6.

PN261

Now, the significance with MZ of course was given a run around the block in re AEU and South Australia. There is just a short passage that I would ask your Honour to look at. Can I hand your Honour a copy of it. It is unfortunately not an authorised report. It is from the Osiris service in Print S1986 which is a timely date, your Honour, 1986. A decision of Vice-President McIntyre, Deputy President Hampton and Commissioner Deagon and in particular at paragraph 9 on the fourth page, in Curragh Queensland Mining Limited 1997 Print 7111, the Full Bench consisting of Giudice J, SDP MacBean and SDP Polites said:

PN262

We turn then to consideration of the question of whether we have power to make an interim award and if so whether we should do so. We think there is considerable substance ...(reads)... However, in the circumstances it is unnecessary to express a final view on the matter.

PN263

Now this points up, if the Commission pleases. The significance of the nature of relief that might be said to be appropriate under 170MX and the sort of relief that is sought is in the nature of interim relief. It is interim injunctive relief. As such it is not appropriate in the form that it is sought, having regard to the operation of 170MZ. Both Full Benches, as we say, have expressed reservations about the making of an interim award under 111(1)(b) in the context of 170MX proceedings because of the impact of 170MZ on any such award. It is submitted that by parity of reasoning the Commission should not make a direction or orders of the kind proposed under 111(1)(t).

PN264

Bearing in mind that in any relief that is made can only be made at this stage under the aegis of the 170MX proceedings in our submission. We also remind the Commission that the appeal, notwithstanding that a stay was not granted, there is still the question of the issues raised in ANFs appeal, C number 2001/4058 and respectively in the case of the Commission that ANF maintains its view that there is no foundation for the 170MX proceedings in any event. Accordingly the matter is not properly before the Commission and we do urge caution upon the Commission in this regard.

PN265

The steps that were taken to terminate the bargaining period, the steps that were taken to refer matters to the Commission under MX and the steps that were taken in relation to what was a private arbitration, we say raised very serious questions about the jurisdiction to proceed under 170MX and the Commission ought to be, with all of these other considerations loath to embark upon granting of relief which - where there is a significant doubt about the basis of it. The Commission - if an applicant wants relief they have got to establish to you, sir, that there is a seamless foundation, that there is a solid foundation for its grant, and particularly where there are other avenues available to the applicant for relief in these circumstances to come by this curious route of 111(1)(t) in adjunct to, it would appear, to the proceedings brought under 170MX is not an appropriate way to proceed and it cannot give the Commission the sort of confidence in the foundation that would be required for the grant of that relief.

PN266

The ANF has also made further appeal filed on 8 August and it is number 4175. This is an appeal from a decision of Commissioner Blair to refer the matter to the Full Bench. The same submission is made in respect of that appeal. It further undermines the solidity of the foundation that the applicants really need to make out for you, sir, before you order the constrained to grant the relief they seek.

PN267

There is also, we say, a problem, a significant problem about the scope of 111(1)(t) in the context of section 127. The powers provided for under 111(1)(t) are - or the power that is reposed in 111(1)(t) is reposed subject to this Act, the prefatory words of 111(1). That means to give meaning to that provision, to those prefatory words, that all of those powers must be seen subject to the provisions and requirements of the Act. 127 is a specific provision dealing with applications for relief in relation to threatened, impending or probable industrial action.

PN268

Now, could I ask the Commission to have a look at 127 and we do note, of course, and the Commission will be well aware of course of the provisions of 127(4) which provide that:

PN269

The powers conferred on the commission by sub-section (1) are in addition to and not in derogation of the powers ...(reads)... by the rest of this Act.

PN270

What we say about that is that that is not aimed to enliven 111(1)(t) with a scope that it otherwise would not have. 127(4) we say is directed to ensuring that whereas there are other provisions that deal with what might be said to be non-compliant conduct, bans clauses, stand downs, action in relation to unprotected action, all of those matters, those are not to be derogated from - by implication arising from 127. 111(1)(t) stands in a different position, not least because of the prefatory words of 111(1), namely that those powers are to be read subject to the Act. But also because 111(1)(t) does not, even on its face, appear to be direct to the sort of relief that is sought.

PN271

It just does not have that as its manifest purpose and it would be necessary if it were to be used in that way for there to be a very real tangible and practical contiguity between the relief that is sought under it and the efficacious disposition of 170MX proceedings. That is, in order to protect the jurisdiction of the 170MX proceedings, or to ensure that any award that might be made under 170MX is not rendered ineffective.

PN272

Now, could I ask your Honour to look just briefly at the Hordern case. Could we hand to your Honour a copy of that and it is reported, as the Commission will be well aware, Anthony Hordern and Sons against the Amalgamated Clothing and Allied Trades Union of Australia 1932 at 47 CLR page 1 and in particular at page 7, about point 3 of the page:

PN273

It follows that the order cannot be supported as an exercise of the power conferred by section 40 and in fact the learned judge of the Court of Conciliation, Arbitration who made the order ...(reads)... free from the conditions and qualifications prescribed by the provision.

[10.55am]

PN274

If the Commission pleases, in circumstances where there is specific power under 127 to deal with what appears to be the intent of the application, to rely upon, as we say, this curious route of 111(1)(t) in circumstances where there is considerable doubt about the relief sought and the 170MX proceedings, we say enlivens just the sort of consideration that is apparent in the Hordern case. In paragraph 7 we have simply noted that the expression "subject to this act" at the beginning of 111(1) underscores the construction point referred to above.

PN275

The use of the expression in a standard way of making clear which provision is to prevail or govern in the event of tension between provisions, the existence of provisions underscores the rule of construction to which we have referred. If the Commission pleases, we have received late last night a large volume of material, and it consists of some 12 or so affidavits and material attached. A proper examination of that material and a proper opportunity for us to get instructions about it we have not yet had, and it would take a little while to do that.

PN276

What is apparent from the material is that of the 6000-odd beds that might be said to fall within the purview of the area the subject of the applicant's operations, there might be 100-odd beds that have been closed. And because of what we say are some - just on a reading of the material such as we have been able to do of it so far - it doesn't address the concerns that we expressed the other night before the full bench about the sort of evidence that would be necessary.

PN277

Now, we have raised these questions about the way in which this matter comes to you, sir, because there is a, as you will see from the outline of submission and what we have said this morning, there are some substantial jurisdictional problems with the way in which the matter has been posed. We have not yet had an opportunity to get full instructions about this material. We filed, in anticipation of the sort of thing that might be adduced, we filed an affidavit on behalf of - I am sorry - a statement of Paul Gilbert dealing with, among other things, the circumstances in which beds are sometimes closed, and the sorts of clinical judgments that get made and so on.

PN278

Now, we have done that in anticipation of the material that we expected to receive in the form we assumed it might be received in, and we are really not in a position to provide a fulsome response to this material as yet. The material doesn't, we say, establish the sorts of things that would need to be established and that we referred to the other night, but we are not yet in a position to provide that response. We have not had adequate time. We received it at 5.30 last night, and there has been a long time for this material to be forthcoming. A period of 12 or 14 hours is insufficient for us to respond to it.

PN279

That, we say, coalesces, and it is of course, it is a fair opportunity to respond to the material is a necessary part of the jurisdiction, the exercise of jurisdiction by the Commission in this sort of a matter, the fair hearing is a further jurisdictional reason in additional to the jurisdictional reasons that we have raised in our outline why the matter cannot go ahead in this form at this stage.

PN280

In those circumstances it is submitted that the Commission ought to if not inclined to dismiss the matters they should be adjourned for an opportunity either for our friends to respond in whatever way they see fit to dealing with what we say are these jurisdictional deficiencies, and it is their responsibility to do so, but we do seek, if the Commission pleases, we do need to have a ruling on these questions, because they are jurisdictional questions, and before the matter is to go any further or before we can be required to respond to this evidence we do ask for a ruling on these jurisdictional questions.

PN281

THE SENIOR DEPUTY PRESIDENT: Can I ask you in relation to the final submission which is in effect seeking the matters be adjourned for some period, if the ANF is prepared to give undertakings that there will be no industrial action in the interim?

PN282

MR HOWELLS: I am not instructed to give any undertakings about any matters, if the Commission pleases. I can get instructions about that, but I don't have any present instructions, your Honour.

PN283

THE SENIOR DEPUTY PRESIDENT: Yes. And can I ask, arising out of your earlier submissions, why couldn't the section 11(t) application made to the full bench be seen as a separate application in reliance on 111(t) rather than section 170MX in the same way as in other proceedings an application might be made to refrain from further hearing of the matter?

PN284

MR HOWELLS: 111(1)(t) by its nature has to be adjunctive to a proceeding in the Commission. That is the first point. The second point is, it was raised as adjunctive relief in the context of the 170MX. What is sought to be done is to have it made as part of the 170MX proceedings, and for all the reasons we have identified it cannot be part of that, and it doesn't have the necessary relevance to the 170MX proceedings itself.

PN285

It is not being raised in that way as a separate proceeding, and in my respectful submission, nor could it be as a separate proceeding, because the very terms of 111(1)(t) are directed to a proceeding already on foot.

PN286

THE SENIOR DEPUTY PRESIDENT: Yes. And finally, why might it not be thought that what was suggested in the press today at least as something being considered by nurses today, a prolonged industrial campaign, have the effect of entirely negating the statutory purpose of section 170MX and the means of resolving disputes in that context?

PN287

MR HOWELLS: Well, first of all, your Honour, one has to assume from that though that the press report is accurate.

PN288

THE SENIOR DEPUTY PRESIDENT: Yes.

PN289

MR HOWELLS: And that in the present context, if the Commission pleases, is a big call. And we would urge extreme caution in relation to that as to number one, who it is that said it.

PN290

THE SENIOR DEPUTY PRESIDENT: Well, I would never rely as evidence on a press report, but certainly it is of concern if there is under consideration what was described as a prolonged industrial campaign.

PN291

MR HOWELLS: Well, the question would be, what does that mean, your Honour, and who is it that is making these statements, and what was the net effect of them.

PN292

THE SENIOR DEPUTY PRESIDENT: Well, according to the press report, the union's Belinda Morieson.

PN293

MR HOWELLS: Well, yes. Well, we would need to see the basis of that. I will get some instructions about it, but I have a very lively doubt, if the Commission pleases, that that would be - that that sort of reportage is reliable. Even if it were - - -

PN294

THE SENIOR DEPUTY PRESIDENT: Well, Ms Morieson was directly quoted, I know directly, because it was a sound byte as seen; I am not sure how strong the industrial action will be.

PN295

MR HOWELLS: If the Commission pleases, having been quoted myself before in the press I can only say, your Honour, that is - - -

PN296

THE SENIOR DEPUTY PRESIDENT: Well, that wasn't a quote, that was a sound recording of Ms Morieson.

PN297

MR HOWELLS: So it is said, and of course I don't have access to that, so I don't know what the position about it is, and also, one doesn't know what the context of it is and one doesn't know whether that is - what it reflects. Now, in the absence of that, if the Commission pleases, there is a real doubt about proceeding on the basis of that sort of material, number one; number two, we say you simply can't draw a conclusion that a campaign, an industrial campaign, if the Commission pleases, it might be an informational industrial campaign.

PN298

One doesn't know what will be involved. It may not affect the operation or the conduct of work. One doesn't know what is involved and how that in a speculative - or the reality of it.

PN299

THE SENIOR DEPUTY PRESIDENT: But in a relevant sense of it being the effect on the outcome of the issue as between the parties which is presently programmed for determination through the processes of section 170MX.

PN300

MR HOWELLS: But that presupposes it could affect the proceeding, if the Commission pleases. I mean, the Commission is not suggesting for a moment that the Commission would be intimidated, but when - - -

PN301

THE SENIOR DEPUTY PRESIDENT: No, I am not suggesting the Commission would be intimidated - - -

PN302

MR HOWELLS: If the Commission is talking about the effect on outcomes it couldn't possibly have that effect. It certainly can't stop - - -

PN303

THE SENIOR DEPUTY PRESIDENT: - - - I can assure you of that.

PN304

MR HOWELLS: No, nor could it of course prevent, and it would be a very long bow to suggest that discussion of an industrial campaign would prevent the employers from participating in the 170MX. That would be a very long bow.

PN305

THE SENIOR DEPUTY PRESIDENT: A discussion of it, certainly.

PN306

MR HOWELLS: Or indeed even if action were taken, how that could affect the conduct of the proceedings or the involvement in the proceedings themselves by any parties is not clear. It is certainly not clear on the basis of what has been said so far, if the Commission pleases. I mean, it is a very long bow to say that because there is this, that there may be this action being contemplated or even undertaken. And the material, if we get, if we ever get to look at this material, if the Commission pleases, then you know, as we say, it is a very big call to say that the reason why a particular bed may or may not have been closed is because of what might be said to be an ANF industrial campaign.

PN307

The idea that that would impede the Commission from simply proceeding to conduct a hearing in the ordinary way to receive evidence and to arbitrate upon it we say is just not - it is not an open conclusion. There would need to be amendments to it. Would the Commission excuse me?

PN308

THE SENIOR DEPUTY PRESIDENT: Yes.

PN309

MR HOWELLS: Can I just indicate also, if the Commission pleases, we have been handed this morning a sheaf of papers which are said to be amendments to the affidavit material. Now, I have not even looked at it. My instructor has simply marked some pages on it while he has been - they were provided with the markings. He has flipped through it. Now, that is amendment material to the affidavit material.

PN310

THE SENIOR DEPUTY PRESIDENT: Yes.

PN311

MR HOWELLS: They are simply not in a state where we can be expected to respond to it at this stage, and the idea that somehow a campaign is preventing the Commission from conducting a hearing we say is just not open. If the Commission pleases.

PN312

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Mr Bell, before I hear from you I intend to adjourn for 15 minutes.

PN313

MR BELL: Yes.

PN314

THE SENIOR DEPUTY PRESIDENT: Mr Howells has raised a number of jurisdictional issues going to the ability of the Commission as currently constituted to deal with the 111(1)(t) matters, the ability of the full bench to deal with them, the ability of the Commission at all to deal with them.

PN315

MR BELL: Yes, he has, all three.

PN316

THE SENIOR DEPUTY PRESIDENT: And he has also raised the issue of adjournment on the basis of what he says is lack of opportunity to deal with the materials. I would propose to adjourn to allow you to consider your position and those you are representing in respect of those matters. It also occurs to me that again by reference to a news report I heard on the radio this morning which is transcribed these days on the Internet, that another issue those you represent may wish to consider is whether the scope of the order presently sought might be sufficient in light of what may or may not occur presuming any accuracy to press reports as a result of what is asserted to be a meeting of 2000 of the state's nurses this afternoon, the scope of the order may be something those you represent may wish to consider, and bearing in mind all those considerations whether those you represent wish to persist with the orders under 111(t) or consider other avenues which Mr Howells has raised as being more appropriate means of dealing with those sorts of issues.

PN317

MR BELL: Mm.

PN318

THE SENIOR DEPUTY PRESIDENT: Well, I will adjourn until say 11.30 and then hear from you in relation to all of those matters. I would ask you, Mr Howells, to see whether you can obtain instructions as to whether any undertakings might be given in respect to industrial action pending either the conclusion of the 170MX or if this matter proceeds, the present matter. That might affect the issue of adjournment.

SHORT ADJOURNMENT [11.13am]

RESUMED [11.44am]

PN319

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Bell.

PN320

MR BELL: Thank you. Your Honour, the objects of the VHIA and the employers and the Department intervener in these proceedings are informed by exactly the same consideration which has informed their participation in proceedings to date, which is circumstances of extreme urgency. The present position is that, as established by the evidence, and I use the word evidence advisedly, is that there are now, as a result of the industrial action, specifically that mentioned in clause 1 of the relevant resolutions, 174 beds closed in the State of Victoria in hospitals in both the metropolitan and country regions.

PN321

Moreover, the evidence establishes that, as a result of those bed closures, there are significant numbers of patients not being admitted for surgery, mostly by not exclusively elective surgery, and there are backlogs in emergency departments because patients admitted to those departments are unable to gain access to general ward beds by reason of bed closures and in those and other wards, with the result that there are persons in significant numbers accommodated in inappropriate ways, trolleys, cubicles and the like, for excessive periods of time in emergency departments.

PN322

The situation is worsening. The general trend is upward in terms of bed closures. There is some bobbing about on a day to day basis, but from 17 July when there were 29 bed closures to now when there are 174, there is a significant upward trend in terms of bed closures which is expected to continue. So that the situation is an urgent one, and that informs the participation by the parties that I represent today. Might I inquire of the Commission whether the Commission has had the opportunity to read the affidavits filed on behalf of the employer and government respondents?

PN323

THE SENIOR DEPUTY PRESIDENT: I have not read them in full but I have gone to them.

PN324

MR BELL: Yes, you have looked at them.

PN325

THE SENIOR DEPUTY PRESIDENT: Yes.

PN326

MR BELL: Well, your Honour will have seen that there are witness statements from major metropolitan and regional health institutions and a couple of statements giving a general picture. Now, the submission as regards the natural justice question is that an organisation with the knowledge of the ANF in regard to the matters at issue could get across the effectual material served on them in accordance with the timetable at one minute before four yesterday within a period of a couple of hours and within that period make a decision as to whether or not to file answering material and certainly to do so within the overnight period which the direction of the Full Bench in this matter allowed.

PN327

What the ANF did was to file or serve at about quarter past 4 a statement of its own demonstrating the knowledge of the issues to which I have referred, yet has not attempted to answer the material in any way whatsoever in the intervening period and with respect, having regard to the seriousness of the matters, clearly and simply expressed in the evidence of the hospitals or the government, it lies ill in the mouth of the union to plead for more time. We just don't have that time, your Honour. The matter is just too urgent and short of material being filed by way of evidence establishing that there is an answerable case with regard to these matters, the Commission ought to treat this case as being as urgent as the evidentiary material before it would suggest.

PN328

Therefore we submit that the natural justice question is not a question at all and that adequate notice has been provided to the union of the nature of the case and the factual material to be relied upon. The union has raised jurisdictional objections to the capacity of the Commission as presently constituted and indeed, as constituted under section 170MX at all, to issue a direction of the kind referred to in section 111(1)(t) and curiously perhaps made reference to the alternative procedure in section 127 as being one that is available, and you, Mr Senior Deputy President, made reference to this before leaving the Bench earlier. We have given consideration to our position in this regard.

PN329

The position that we take is that it is appropriate to adopt a graduated response to circumstances such as those present. There is constituted pursuant to the processes of the Commission a mandatory Full Bench conducting an arbitration under section 170MX. That arbitration is not theoretical. It is real. There is a Bench that will conduct it and directions have been issued pursuant of that objective. That bench has the statutory responsibility to hear and determine the underlying dispute. That dispute essentially being the matter of work load and the question of nurse/patient ratios as it bears on that.

PN330

We consider that it is appropriate in a circumstance where there is a real threat to the orderly conduct of that arbitration to bring that threat to the attention of the Full Bench conducting it and as a first step in a series of steps that might need to be undertaken because of the conduct of one party to that arbitration, and we are not attracted to a step that overleaps that one such as the initiation of section 127 proceedings or any other step and we consider that the Commission, if the Full Bench is unavailable to hear the matter, the Commission, having the power to issue the section 177(1)(1) order requested, ought first to consider whether or not to issue an order before we take the next step of instituting section 127 proceedings.

PN331

THE SENIOR DEPUTY PRESIDENT: I am sorry, could you go through that again.

PN332

MR BELL: Yes. We want to make application to the Commission, in other words persist with the application that we have already made for the Commission to issue the directions sought prior to considering whether to issue an application for section 127 orders, and we therefore press the application we make to you - - -

PN333

THE SENIOR DEPUTY PRESIDENT: And you are making it to myself in what capacity?

PN334

MR BELL: I am making it to yourself in several capacities. Firstly I make an application nunc pro tunc as we say in the law, that is here and now, for you to exercise the powers that you have under section 111(1)(t) in your capacity as member of the Commission to give orders necessary or expedient for the speedy and just hearing and determination of the industrial dispute. In this regard I rely on section 111(2) which provides that a reference to an industrial dispute includes a reference to any other proceeding before the Commission. That is the first basis on which I put it.

PN335

The second basis on which I put it is that section 170MY(1) provides that the Commission has the conciliation and arbitration powers in relation to the matters mentioned in the other provisions, that it would have under Part VI, if that part applied to conciliation and arbitration in relation to the matters, and it is our submission that the provisions of section 170MY(1) pick up the entirety of Part VI, including section 107(9), such as to clothe the Full Bench conducting the section 170MX arbitration with all of the powers necessary and ordinarily available to a Full Bench in the exercise of the Full Bench arbitral powers.

PN336

So the Commission was right in our submission to think that it could exercise the section 107(9) power to refer that part of the current proceeding to you to hear and determine, that part of the current proceeding being the section 111(1)(t) application. It is the Commission that is clothed with the Part VI powers according to section 170MY(1). It is the Full Bench that is required to exercise the arbitration powers - see section 170MX(4) - but it is the Commission that is clothed with the general powers in connection with the arbitration that are available under Part VI - see section 170MY(1). So that you, Mr Senior Deputy President, have available to you the powers to issue such orders as may otherwise have been available under section 111(1)(t).

PN337

The Commission also has a power available to it in section 111(1)(d) to give a direction in the course of, or for the purposes of the hearing, of a determination of the industrial dispute. It is our submission that you have - that the Full Bench had available that power to direct that you hear the direction matter activated under section 111(1)(t) and that that provided an alternative authority to the Bench to direct that you hear and determine that direction matter, quite apart from the provisions of section 107(9). Generally speaking it is to be expected that the Act when it constitutes a Full Bench with the responsibility to conduct a mandatory arbitration, would have clothed that Bench with the powers usually appurtenant to the conduct of such a function.

PN338

And one power usually appurtenant is the power to give directions which are necessary or expedient for the speedy and just hearing and determination of the industrial dispute as mentioned in section 111(1)(t). Usually appurtenant is the capacity for the Full Bench, constituted sometimes by persons being members of the Commission from interstate, or even if in Melbourne very busy on other matters, to direct or to refer a matter to a single member, especially matters that are in the nature of directions intended to protect the subject matter of the dispute pending its hearing and determination.

PN339

So that one wouldn't start from the proposition that the Full Bench conducting the mandatory arbitration under section 170MX would not possess those kind of powers. One would start from the opposite point of view. When looking at section 111(1)(t) and asking could the Commission issue a direction in reference to a dispute the subject of an MX arbitration, it only goes to make more strong the proposition that the Commission can do that if the Commission is told by a party resisting an application for an order that the MX Full Bench can't, or that a member of the Full Bench can't.

PN340

In other words, if the issue of a direction is not available under section 170MX, all the more likely it is available under section 170 - I beg your pardon, 111(1)(t). If the Commission as presently constituted is of the view that it doesn't have sufficient confidence in the capacity of the Commission as presently constituted to issue the direction, then we would request that the Full Bench be convened to hear and determine the application for the order under section 111(1)(t).

PN341

THE COMMISSIONER: Yes. Well, there is some practical difficulty in that.

PN342

MR BELL: I thought there might be.

PN343

THE COMMISSIONER: Yes.

PN344

MR BELL: I thought there might be. And that only goes to show how unlikely it is that the parliament would have required by section 170MX an arbitration to be conducted mandatorily on grounds that, for example, there was an endangerment to the life, the public safety or health or the welfare of the population, and yet make provisions which in effect deprive the Full Bench with the capacity to make directions necessary for the conduct of that arbitration. Those two things are oil and water, and don't mix, and the likelihood is all the other way.

[12.01pm]

PN345

The position which obtains with respect to the Commission generally conducting conciliation and arbitration matters is set out in authorities that I now wish to give to you. My learned friend has rightly referred to Hoyts as being - my learned friend has rightly referred to Hoyts, with which you will be familiar. The most recent of which I am aware of a full bench of the Commission on this subject was given by a full bench of five members over which Giudice J presided recorded in print S7179, and you will be familiar with the passage in paragraph 26 where that bench dealt with the issue of the confirmative substantive powers.

PN346

I read paragraph 126:

PN347

There is one matter to which we should refer. This part of our decision deals with ...(reads)... the power is more than procedural -

PN348

and one need only see the orders in the MEAA case to see that:

PN349

If as seems likely section 111(1)(t) does confer substantive powers when a party invokes the exercise of such powers further questions may arise concerning -

PN350

etcetera. That is not relevant in this case. So that the latest full bench affirms that the powers are substantive and that they are available in conciliation and arbitration, and there is a litany of occasions presented in the other decisions which we have given to you indicating that this power is oft exercised. In the Kinhill matter Commissioner Tolley in 1998 issued orders and directions:

PN351

That no action takes place that breaches the registered enterprise agreement which covers work on a project.

PN352

In the coal industry matter Boulton J in 1997 issued a direction that work would continue as normal in accordance with the award and that there would be no industrials action taken by the unions, their officials or members employed by the company. In the BTR matter in the year 2000 Commissioner Foggo issued orders directing that all bans and limitations on overtime by employees at BTR be lifted immediately. In the Metal Trades Industry matter in 1998 Commissioner Palmer issued orders that the union and all of their officers and members would be directed to cease and desist from any industrial action, bans, strike or limitation in support of claims.

PN353

In the Rigby Jones matter in 1997 Commissioner Lawson issued direction refraining the employees from taking any further industrial action during the period specified, and in the AWU matter in 1998 Commissioner Merriman issued directions to the union, their officers and members to direct - to cease and desist from industrial action and so on, so that I feel able confidently to submit to the Commission that in the ordinary course of conducting conciliation and arbitration the Commission in necessary circumstances exercises the section 111(1)(t) power in order to protect the subject matter of the matter before it.

PN354

The idea that the full bench conducting not a discretionary but a mandatory arbitration in circumstances of endangerment to the community doesn't have that power is a submission that ought to be rejected. Moreover, the submission that a single member of the Commission can't issue that direction, especially one that is a member of the appeal bench, or rather the MX bench, but not necessarily, ought also to be rejected. As I say, however, if the view is that the jurisdiction doesn't exist or can't be held to be present with sufficient confidence, then we make the request for the bench to be constituted.

PN355

If that is not possible, so that it isn't possible for administrative reasons for the employer and government parties to make an application for a section 111(1)(t) order from the full bench that will hear and determine the section 170MX arbitration, then we would request that we be so advised, because in such circumstances it would appear that an order under section 127 would be the only other available course, and I would apprehend that that course would be seriously considered having regard to the serious circumstances that arise.

PN356

I do want to emphasise something here; the government and employer parties are very serious about this matter. We are working through the processes of the Commission, but these processes have a certain destination, and that is well understood. The evidence that has been put to you with respect to bed closures is seriously presented, and no government and no hospital employer in the light of that evidence could fail to take the necessary action to protect the orderly provision of patient services, and we are being forced by the current circumstances to go down a certain route, and we do implore the union to desist from action that is compelling us to adopt that route.

PN357

Consistent with what you have said this morning, if the union were to undertake not to undertake action that brings about bed closures, then this scenario of urgency which is activating the government's and the employers' role in these matters would be changed, but short of serious and sincere action on the part of the union that ended the threat to the provision of beds, there is no alternative but to go down the route that we have. Can I come now to the question of whether or not the power under section 111(1)(t) is available with respect to the arbitration being conducted under section 170MX.

PN358

There is no difference in substance between the exercise of arbitral powers pursuant to section 170MX, and the exercise of arbitral powers under part 6 of the Act or any of the other provisions of the Act. There is a subject matter to the arbitration, being the matter of work load, nurse/patient ratios, some rational means with integrity of specifying a reasonable work load on the part of the nursing staff. There is a bench whose responsibility is to determine that question and issue an award accordingly.

PN359

With respect to arbitrations not under section 170MX the situation is exactly the same. There is a subject matter, a need to hear and determine the dispute, and to issue an award on the merits. In the present case, it is appropriate under section 111(1)(t) to issue an order because it is necessary and expedient for the speedy and just hearing and determination of the industrial dispute being the subject matter of the section 170MX arbitration. Of course the Commission won't be intimidated by industrial action, but there - it is the question of the parties and their conduct in the arbitration that is at issue.

PN360

How can the - once the 170MX has been constituted, in other words, once the bargaining period has been terminated, such that the Commission has determined that these matters are not to be dealt with by way of enterprise bargaining, it is necessary to hold the status quo in order that the Commission's function can be discharged appropriately. And the Commission's arbitral function can't be discharged appropriately in circumstances where one party is continuing industrial action, and that is what is happening.

PN361

Indeed, industrial action in circumstances where the employer parties are hospitals and the government is involved because they are public hospitals and the industrial action is bringing about bed closures. That kind of action attacks the sub-stratum of the arbitration. It attacks the factual setting in which the arbitration is to be conducted. It attacks the stability of the parties. It brings about public unrest and deterioration of public confidence in the provision of health services, and destroys the proper environment in which the arbitration is to be conducted.

PN362

Moreover, and this is an important point, the object of the industrial action is to procure an outcome, not through the orderly processes of the Commission, solemnly determined by the Commission to be the only processes available, but through industrial action of the kind, the cessation of which is implicit in determination of the bargaining periods by the Commission. So that it is completely inconsistent with the whole nature of a section 170 arbitration for one party to be seeking to achieve in the field, what the Act requires to be determined by the Commission.

PN363

And nothing will be more pertinent, more necessary, more expedient for the speedy and just hearing of such an arbitration, than an order as mentioned in section 111(1)(t). An order under 111(1)(t) is not an interim award, as mentioned in section - or as - the making of which might be complicated by the provisions of section 170MZ. A direction issued under 111(1)(t) is nothing more nor less than what it says:

PN364

A direction necessary or expedient for the relevant reason.

PN365

You wouldn't ordinarily in relation to a direction specify the matters as mentioned in section 170MZ which are obviously directed at orders that determine the industrial dispute. In other words, the subject matter of the arbitration referred to in section 170MX(3), the nominal expiry date, the various matters. The direction is just a direction. It may be enforceable as an order, ie, an award, but it doesn't come within 170MZ in our submission. If that were so, all directions would and that seems hardly likely.

PN366

The ANF refers in paragraph 5 to the appeals. The important thing about the appeals is that there has not been a stay on the termination decision of Commissioner Blair. The Commission as constituted by Acting President McIntyre refused to grant the stay and that means that the bench as presently constituted and the bench conducting the MX arbitration, has the statutory responsibility to hear and determine this matter. It is no answer to say that there is an appeal, because the present situation is that there is no stay on the termination decision and that means that this Commission has the jurisdiction, therefore the responsibility, to consider whether to issue the section 111(1)(t) orders.

[12.15pm]

PN367

Mr Howells referred to another appeal of which we have not got present knowledge and - and for that reason I make no comment in relation to that. Mr Howells says section 127 is the place to go and - and to that we say that may well be right and there will be no hesitation on the part of the hospital employers and the government parties to make an application under that provision and to do all of the necessary things to enforce it.

PN368

But, before doing that it will be necessary for the section 111(t) route to be exhausted and section 127 does not - does not detract from the jurisdiction of the Commission elsewhere conferred. That is what section 127(4) says and my learned friend fairly referred you, Mr Senior - Mr Deputy Vice President, to that provision, but he is explaining away that it ought to be rejected. The plain words are, "the powers conferred on the Commission by subsection 1 are in addition to and not in derogation of the powers conferred on the Commission by the rest of the Act" and - and so section 127 is an alternative - is a parallel, separate course that is available, but it does not at all detract from the Commission's powers under section 111(1)(t).

PN369

Therefore Hordern's case is entirely distinguishable. The - the appropriate way for the Commission to - to proceed in this matter, in our respectful submission, is to receive the entirety of the affidavits and statements relied upon by the employers and the government parties. The union has not sought the right to cross-examine those witnesses. We do not insist upon them cross-examining those witnesses.

PN370

My learned friend says he has not got to that. Well, he will need to make up his mind whether or not he - his client does wish to get to that point. We do not - we do not require the union's witness for cross-examination, in circumstances where our witnesses are not so required. These are proceedings conducted in circumstances of extreme urgency, in the nature of interlocutory proceedings, which even a Court would not lead to parties - witnesses being cross-examined. The - the Court would look at this material and make a judgment upon the basis of the evidence before it, whether or not there is a serious - there was a serious question that the - the offence of the law was being conducted.

PN371

The offence of the law in the present case is - is the - is an attack upon the subject matter of the arbitration. This attempt to get in the feel of what the law declares, ought to be the Commission's responsibility. If the Commission is of the view that the material does establish a good and serious case, that that is happening, then it ought to be minded to make the order and really it is the responsibility of the party resisting that order to bring forward a case to the Commission, to show that there is some real basis upon which the order can be resisted and the union, despite saying twice in a period of a week, that it is being given no opportunity to meet a case, has never met that case and it won't

PN372

because it cannot be met.

PN373

One can quibble about numbers in particular places, but the general scene is abundantly clear. This is a very strong case that there are circumstances of extreme urgency arising out of bed closures, resulting from bans imposed by the union, which it well knows will have that effect. I am on the - on the merits, my learned friend asks what - what submissions I am making and I am - I am making here - I am making submissions which incorporate the totality of the case that I want to make because I am making submissions to the Commission as to how this matter ought to be dealt with and this matter ought generally to be dealt with in accordance with - with these steps.

PN374

The Commission should determine whether it has power under section 111(1)(t) to make an order; it should then - it should then determine that the present case is an appropriate case in which to make an order; it should then consider the question of whether or not there should be cross-examination of witnesses or not; and our submission in that regard is that there ought not to be cross-examination of witnesses, but that is a matter that will need to be considered upon the basis of submissions made by my learned friend and myself and then at the end of the day it ought to make an order if it is persuaded so to do.

PN375

The witnesses who are deposed to the affidavits and the authors of the statements present in Court are available - are ready, willing and available to give evidence. They are here, hearing the submissions which I have made on their behalf, or on part - part of the employer parties and they have provided statements prepared by their solicitors on instructions and that ought to be enough, in our submission, to constitute the factual basis for the present - for the making of the applications that I have made and we ask you to hear and determine the application on that basis.

PN376

They are my submissions today, if the Commission pleases.

PN377

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bell. Mr Howells.

PN378

MR HOWELLS: If the Commission pleases that Mr Bell has - has really extended himself into dealing with matters of merit. At the beginning of my submissions he interjected and said "well look is this about you know, is this jurisdictional or are we dealing with merit?", and we have dealt with and put forward the serious jurisdictional problems that exist for this application, particularly in the circumstances where there are other alternatives available. So far as his extension into the merits is concerned, Senior Deputy President, the evidence does not make out what he says about it at all. It does not come - it does not come close to having people actually saying "we closed beds because of industrial action". It just does not come to that and a lot of it is hearsay.

PN379

A lot of it is from doctors who say "well look, I have been told about such and such happening or such and such not happening". The evidence does not get that far. But the first question here is whether or not there is a jurisdictional basis. The difficulty with 111(1)(t), which is not solved by either the submissions that have been made or - or the cases that have been referred to, is that this proceeding came by way of 170MX and 170MX and the arbitraral powers that are exercisable under it are to be exercised pursuant to subsection 4, by a Full Bench.

PN380

We are not here dealing with conciliation or the exercise of conciliational powers, what is being sought is - is for relief said to be adjunctive to the 170MX proceeding and it is difficult to see how it could be anything but that. The - the terms of 111(1)(t) require reference to a proceeding and they require, then, that it be shown how - it be shown how the order is conducive to ensuring that the proceeding, the substantive proceeding be able to continue and be able to continue efficaciously. There is, despite what my friend might want to say, no indication in this Act for what it is worth in its current state ever is there an intention that there should be no industrial action undertaken or anything like it, or it be contemplated in order for proceedings to continue.

PN381

There needs to be some demonstrated relationship between the relief that is sought about what is said to be industrial action and the efficacious hearing and determination of a 170MX proceeding and that is just not established. Those authorities that my friend has gone to do not deal with proceedings of this kind which have arisen. It is neither Kinhill, neither BTR case, the Cole case, nor CPSU, are cases of that kind.

PN382

Now along time ago there was a provision, as I record and I am not able to tell the Commission precisely when it was, but it is my - my recollection is that it goes back to the 50's where there was a proposition that you could not have any proceeding undertaken while there was industrial action on foot. That is not the position and it is certainly not the position under this Act. There is also no intention - there is no expressed intention by the Parliament in what is called the Act, at the moment, that would suggest that the Commission is to intervene on all occasions or on any occasions where it might be said there is some industrial action on foot. That is just not what the nature of the - of the Act is about.

PN383

Indeed, the authorities so far as they deal with the involvement of the Commission when there is disputation are concerned, tend in the other direction. The Act is restrictive about the Commission's powers. Then, of course, my friend says "well this - this proceeding - or this is necessary to hold status quo". Why and what status quo is being talked about. The evidence does not establish that. What it does establish unequivocally, if one got to it, is that bed closures occur for a range of reasons and often times what is involved is clinical judgments about that matter.

PN384

In an appropriate situation it would be necessary for us to look at, in some detail, this evidence and there may be a need to cross-examine some of these witnesses about precisely what it is they say they were involved in, in their decision making. Now we have not got to that stage yet and we would - we need, and we do seek, a ruling on these jurisdictional matters before embarking upon an examination of this evidentiary material.

PN385

My learned friend then went on to refer to the nature of 111(1)(t) orders and he says "well they are not interim orders for the purposes of 170MZ". If that is the case, does he also say therefore that they are not amenable to Federal Court action? Highly unlikely that he would be putting that proposition. If it is being put, it has not been thought through properly. It is not an answer to the operation of 170MZ. It is not a categoric answer and the - the only way in which that could be finally determined would be when an order was made and an attempt were then made to vary it or revoke it. That is - that is the time at which that debate would crystallise.

PN386

What he does not have, at this stage, is an answer to the need for relief that is to be sought in the context of the conduct of the 170MZ proceeding to be given by a Full Bench and he does not have an answer to why it is said that somehow this section 111(1)(t) application has a relevant contiguity with ensuring the efficacious disposition of the proceedings. That has not been established. There is no presumption that somehow, and there can be no presumption, that somehow because there might be contemplation of industrial action that that somehow interferes with the conduct of proceedings. It simply does not and it is not demonstrated what the connection is.

PN387

We have - I have sought instructions about the matter that you - your Honour raised, and the instructions that the - a meeting of members of the ANF to consider questions of workload has been brought forward from what was scheduled to be 14 August, to today. In the context of the proximity of the meeting the officers of the ANF are not able to give undertakings of the kind that have been raised. They do point out, however, that they have been available to talk to government and relevant employers in the recent past at all times available to talk and that has not been apparently of interest to those representatives and - - -

PN388

MR BELL: Well, that - that is rejected.

PN389

MR HOWELLS: Well, it may be rejected. Those are my instructions and as I say, if the Commission, pleases, we seek a ruling on these jurisdictional matters and we would, with respect, seek an opportunity to - to deal with any ruling that is made about them so that we can then look - look at the position. But we say really in the circumstances the appropriate course is for the employers to look again at their proceeding and consider a better way forward, if the Commission pleases.

PN390

THE SENIOR DEPUTY PRESIDENT: Very well. I intend to adjourn until 2.15. Could I indicate to the parties whilst I am considering the various issues that have been put before, they should place themselves in a position that they are able to deal with the relevant evidentiary if that becomes necessary, but I will announce my decision - a decision at 2.15, on the preliminary issues, but reiterate the parties should be in a position to proceed if that is the outcome.

LUNCHEON ADJOURNMENT [12.32pm]

RESUMED [2.22pm]

PN391

THE SENIOR DEPUTY PRESIDENT: In print PR907410 a Full Bench constituted under section 170MX of the Workplace Relations Act 1996 referred to myself pursuant to section 107(9) applications ancillary to applications for procedural directions for the section 170MX matter, orders sought pursuant to section 111(1)(t) for hearing and determination. The matter was listed today, subject to directions, published in print 907410. At the commencement of the proceedings the ANF, the respondent, in respect of the 111(1)(t) orders sought, raised a number of jurisdictional matters going to the jurisdiction of the Commission as presently constituted, the jurisdiction of the Full Bench and the jurisdiction generally of the Commission to make the orders sought.

PN392

The ANF also sought an adjournment of the hearing. Before dealing with those matters I should indicate that on the materials filed in this matter, I am of the view that the public sector health agencies and Government intervening have raised a seriously arguable question as to the undertaking of industrial action by the ANF resulting in bed closures at the cost to various public sector health agencies and the general public, in particular, members of it in need of medical attention. Further it is arguable that such action would material-effect the factual context of a section 170MX arbitration.

PN393

It is my firm view that urgent action to hear and determine the matters immediately in contention is required both to ensure that the purpose of the arbitration is protected and the public interest is addressed. To that end - that end would however require jurisdiction within the Commission as presently constituted to undertake such a hearing on the basis of the section 111(1)(t) applications. Plainly the Full Bench, not having been constituted pursuant to section 107(2) of the Act, is not able to refer the matters to myself under section 107(9), that however would not prevent me from proceeding if jurisdiction otherwise existed, the Queen v Moore, ex parte Graham [1977] HCA 20; 138 CLR 164.

PN394

In the limited time available to me to reflect upon the submissions put today, I am not satisfied that the jurisdictional basis exists for the Commission to proceed as currently constituted. Whilst Mr Bell referred to general powers, in particular section 111(d), such powers being available to the Full Bench, section 170MY, I am not satisfied that those general powers are exercisable by Bench constituted under section 170MX in the absence of express powers of the type available to Full Benches otherwise constituted and in light of those express powers in respect to other Full Benches. I am not satisfied that the Commission as presently constituted has jurisdiction to hear and determine the section 111(1)(t) applications.

PN395

In circumstances, which in my view, require urgent resolution of the matters referred to me and where I am not satisfied the Commission possesses jurisdiction as presently constituted, I will adjourn these proceedings and refer the section 111(1)(t) back to the Full Bench to hear and determine the outstanding jurisdictional issues and if jurisdiction exists the section 111(1)(t) applications. Regrettably the Full Bench, unless substantially re-constituted is not in a position to re-convene in any reasonable period of time both absolutely and particularly given the pressing nature of the matters requiring determination.

PN396

I can provide little guidance as to how quickly a substantially re-constituted Bench could convene. In those circumstances what Mr Howells described as "other avenues", section 127 application, may need to be contemplated by the public sector health agencies and Government. I understand that they prefer what they describe as a "stepped approach". A further and different application may be necessary, however to resolve the immediate issues, which would have been subject to determination of the 111(1)(t) applications.

PN397

If requested I will confer with the relevant panel head, I am sorry, I will refer to the relevant panel head, any views put as to the urgency of any section 127 application, if made. I can only reiterate it does appear to be an arguable proposition that industrial action is contributing to bed closures in hospitals, the cost of hospitals and patients requiring medical attention, it is imperative that the proposition be tested and if made out, addressed as a matter of urgency. Being appraised of the continuing dispute, I now recommend, pending any further action, either by the Full Bench or in other proceedings, that the ANF, its officers and members refrain from any industrial action which has the effect of closing hospital beds.

PN398

I further recommend that in the absence of industrial action the parties meet and confer with a view to, as far as possible, resolving the issues between them. Do the parties wish to put anything further in light of that? Yes, Mr Bell.

PN399

MR BELL: Yes, thank you, Mr Senior Deputy President. The circumstances remain urgent and we are grateful for the expression of the recommendation in regard to this matter. We can inform the Commission that the agencies and the Government have already determined to adopt the course of making an application under section 127 of the Act in the light of your Honour's ruling with regard to the unavailability of the power to make a direction under section 111(1)(t). We will formalise that application with the provision of papers as soon as possible. The factual basis upon which the application is made has already been supplied to the Commission and to the other parties. We stand ready to make that application at any time of day or night, weekday or weekend, so as soon as the Commission is appropriately constituted it can hear it and in the light of the urgency of the circumstances we ask the matter be urgently listed.

PN400

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you Mr Bell. Mr Howells.

PN401

MR HOWELLS: Nothing, sir.

PN402

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well I adjourn now and my decision will be published in the normal form in due course.

ADJOURNED INDEFINITELY [2.30pm]